U.S. v. Radcliff

• Citation: 331 F.3d 1153
• Decision Date: 16 June 2003
• Docket Number: No. 01-1557.,01-1557.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Wesley RADCLIFF, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1153

331 F.3d 1153

UNITED STATES of America, Plaintiff-Appellee, v. John Wesley RADCLIFF, Defendant-Appellant.

No. 01-1557.

United States Court of Appeals, Tenth Circuit.

June 16, 2003.

David B. Savitz, Denver, CO, for Defendant-Appellant.

Robert M. Russel, Assistant United States Attorney, Denver, CO (John W. Suthers, United States Attorney, with him on the briefs) for Plaintiff-Appellee.

Before EBEL, ALDISERT,^* and

HOLLOWAY, Circuit Judges.

EBEL, Circuit Judge.

Defendant John Wesley Radcliff, undersheriff for Ouray County, Colorado, was convicted by a jury of conspiracy to distribute methamphetamine and of carrying a firearm during and in relation to that conspiracy. He was sentenced to 288 months of imprisonment.

Defendant now challenges three aspects of the proceedings before the district court. First, he contends that the evidence was not sufficient to support his firearm conviction. Second, Defendant contends that wiretap evidence used against him at trial should have been suppressed because of a defect in the order authorizing the wiretap. Third, Defendant contends that the district court erroneously declined to grant a downward departure based on his evidence of psychological coercion.

We exercise jurisdiction over this criminal appeal pursuant to 28 U.S.C. § 1291, AFFIRM Defendant's conviction, and DISMISS his sentencing challenge. The evidence at trial was sufficient to prove that Defendant carried a firearm during and in relation to the methamphetamine conspiracy. The district court correctly denied Defendant's motion to suppress the wiretap evidence because the omission in the wiretap order was merely a technical defect.

We do not have jurisdiction to review a district court's denial of a downward departure at sentencing, unless the district court mistakenly believed it had no authority to depart. Because the district court did not clearly indicate that it had no authority to depart, we DISMISS that portion of Defendant's appeal.

I. BACKGROUND

On March 25, 1999, Defendant was indicted along with eighteen others for conspiracy to possess with intent to distribute methamphetamine in violation of 21 U.S.C. § 846. Defendant was also individually indicted for carrying a firearm — the Ruger.45 service weapon he carried in his capacity as undersheriff — during and in relation to the conspiracy in violation of 18 U.S.C. § 924(c).

The methamphetamine distribution conspiracy charged in this case began in 1996. Its ringleader was Defendant's brother-in-law, Perry Wherley ("Wherley"). In 1994, Defendant married Wherley's sister, Lisa, who unbeknownst to Defendant was a long-time user of methamphetamine. Lisa obtained methamphetamine from Wherley and from her aunt, co-defendant Brenda Paul ("Paul").

The conspiracy emerged when Wherley and Paul began traveling to California every other weekend to purchase methamphetamine and bring it back to Ouray County. They would typically buy one to four ounces of methamphetamine and, upon their return, would prepare it for distribution to approximately ten regular customers. Customers would come to Wherley's trailer to pick up their purchases. Although Paul left the conspiracy in the summer of 1997, Wherley continued these trips to California with various partners and obtained methamphetamine from various sources. During the conspiracy's infancy, Defendant discovered his wife's addiction and eventually became a user himself. They both continued to use methamphetamine until the 1999 indictment.

Defendant's role in the conspiracy was to warn Lisa and Wherley about law enforcement risks to the operation and to mislead other law enforcement officers regarding the illegal drug activity. Through numerous incidents from 1997 until the March 1999 indictment, Defendant demonstrated his willingness to interfere with law enforcement's investigation of the conspiracy.

In February 1997, Defendant received information from sheriff's deputy Dominic "Junior" Mattivi that a neighboring county was setting a roadblock for Wherley and Paul, who were returning from purchasing methamphetamine in California. Defendant relayed this information to Lisa and drove her to Paul's boyfriend's home. Paul's boyfriend drove to Utah to warn Wherley and Paul. Based on this warning, Wherley and Paul were able to avoid detection by law enforcement.

In June 1997, in order to cover up Defendant's knowledge of the conspiracy, Defendant and Lisa staged an act to convince another sheriff's deputy, co-defendant Leroy Todd, that Defendant was just discovering his wife's methamphetamine addiction. Also during that summer, Defendant learned that Paul was reporting Wherley's drug activities to the Colorado Bureau of Investigation ("CBI"). This information was relayed through Lisa to Wherley, who went to the police and contradicted Paul's reports.

In January 1998, Wherley was stopped by a Colorado State Trooper, Shawn Olmstead. Olmstead discovered methamphetamine on Wherley and arrested him. When Olmstead radioed in the arrest information, he specifically requested that no one notify Defendant because he did not want any confrontations with Wherley's family members, especially family members that would be armed. Despite Olmstead's request, Defendant and Lisa arrived at the scene of the arrest just a few minutes later. From there, Lisa went to Wherley's trailer while Olmstead took Wherley to the police station and obtained a search warrant for the trailer. With Defendant's knowledge, Lisa took all of the inculpatory materials from Wherley's trailer and stored them in her house before the warrant was executed.

In February 1998, Wherley, while out driving, realized that he was being followed by Defendant's subordinate, Ouray County Sheriff's Deputy Betty Wolfe. Wherley called Defendant to ask why he was being followed. Defendant then phoned Wolfe and interrogated her as to why she was following Wherley. Intimidated by Defendant's questioning, Wolfe ceased to follow Wherley.

During the summer of 1998, Defendant, Lisa and Wherley became suspicious that their phone lines were under surveillance. They agreed to use a code when speaking about methamphetamine over the phone.

By November 1998, FBI Agent Emerson Buie had become involved in the investigation. Buie telephoned Defendant to see if Defendant would volunteer that Wherley was his brother-in-law. When Buie inquired about Wherley, Defendant did not mention their relationship and represented that Wherley had abandoned the drug business. That same month, CBI Agent Jack Haynes had the sheriff of a nearby town call Defendant and falsely advise him that a search was going to be executed at Wherley's trailer. Defendant told Lisa about this search but warned her that she could not tell Wherley. Lisa gave this information to her mother, who then called Wherley and warned him about the search.

Finally, throughout this time period, Defendant knowingly permitted Wherley to store methamphetamine and cash in his home for safekeeping when Wherley went out of town or feared his trailer would be searched.

Throughout the conspiracy, Wherley provided Defendant and Lisa with free, user amounts of methamphetamine. Typically he gave the methamphetamine to Lisa, who would share it with Defendant. To get methamphetamine from Wherley, Lisa and Defendant would ordinarily meet at Wherley's trailer shortly after he returned from his weekend trips to California. Lisa would arrive in her car, and Defendant would arrive in his patrol car, wearing his uniform and carrying his gun. Wherley would give the methamphetamine to Lisa. Defendant would drive a short distance from the house, wait for Lisa to leave, and then escort her home.

The indictment alleged that on March 30, 1998, Defendant carried a firearm during and in relation to the drug trafficking conspiracy, shortly after Wherley had returned from a trip to California. On that date, law enforcement agents conducting surveillance testified that Defendant and Lisa arrived in separate cars at Wherley's trailer. After a short time, Defendant, who was in uniform, left in his patrol car, drove a few miles and pulled over to the shoulder of the road in front of a motel. Lisa Radcliff arrived at that location in her car five or ten minutes later. Both cars pulled out heading toward the Radcliffs' home.

On March 25, 1999, nineteen individuals were indicted in connection with this conspiracy. Eventually Wherley, Lisa, and other co-defendants cooperated and became government witnesses, while Defendant and six others proceeded to trial. Prior to trial, Defendant moved to suppress evidence that had been obtained from a wiretap in Wherley's house. This motion was denied.

The jury convicted Defendant on both the conspiracy and firearm charges. Defendant moved for a judgment of acquittal on the firearm conviction on the ground that there was insufficient evidence to show that he used his firearm "in relation to" the drug trafficking conspiracy on March 30, 1998. The district court denied the motion.

Defendant was sentenced to 168 months of imprisonment on the conspiracy count and an additional 60 months on the firearm count. The district court denied his request for a downward departure pursuant to U.S. Sentencing Guideline § 5K2.12.

For the reasons stated below, we AFFIRM Defendant's conviction and DISMISS the portion of his appeal related to his sentence.

II. SUFFICIENCY OF THE EVIDENCE

Based on events that occurred on March 30, 1998, a jury convicted Defendant of using or carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). On appeal, Defendant argues that the evidence was insufficient to support the jury's finding that he carried his firearm "in relation to" the crime.¹ Because we find that a reasonable jury could infer that Defendant intended for his Ruger.45 service weapon to facilitate the conspiracy for the distribution of methamphetamine, we conclude that there...